Tuesday, April 8, 2014

Fraudulent misrepresentation, child support, equitable distribution, and fire roasted chicken with garden cucumbers and basil-balsamic vinegar



Attorneys -- Discipline -- Bringing of frivolous action -- Knowingly disobeying court order to pay attorney's fees -- Presenting criminal charges solely to obtain an advantage in a civil matter -- Conduct prejudicial to administration of justice -- In light of attorney's conduct, disciplinary history, false statements to referee, and other aggravating factors, three-year suspension is appropriate discipline
THE FLORIDA BAR, Complainant, v. BRUCE EDWARD COMMITTE, Respondent. Supreme Court of Florida.

Child support -- It was an abuse of discretion for trial court to fail to set amount of child support obligation before applying amount of child's derivative social security disability benefit -- Court should have calculated monthly child support obligation, explicitly included that amount in final judgment, and only then applied derivative benefits to reduce or pay that obligation -- Nevertheless, court reached correct result because derivative benefits exceeded amount of child support obligation
DEPARTMENT OF REVENUE on behalf of BRENDA JOYCE JENKINS, Appellant, v. STACY NICOLE PORTER, Appellee. 2nd District.

Condominiums -- Right of access -- Trial court erred in entering summary judgment in favor of condominium association on its right to access owner's unit for pest control purposes -- There were genuine issues of material fact as to the reasonableness and necessity of the association's actions where the owner had lived in the unit for several years without pest service provided by the association and there was no evidence of a pest problem when the dispute arose -- Attorney's fees -- Judgment entered pursuant to aforementioned summary judgment is therefore reversed -- Contempt -- Contempt finding against owner for noncompliance with original final judgment is affirmed because the owner failed to appeal the original contempt finding, appealing only from the enforcement order, and because a contempt order may stand even if it is based on an erroneously entered order
JOYCE SMALL, Appellant, v. DEVON CONDOMINIUM B ASSOCIATION, INC., Appellee. 4th District.

Contempt -- Civil -- Where court found defendant in contempt for failing to file fact information sheet as required by court order, it was an abuse of discretion to impose a per diem fine as a coercive civil sanction without giving defendant a reasonable time to purge its contempt and without considering defendant's ability to pay the sanction
CREATIVE CHOICE HOMES, II, LTD., etc., Appellant, vs. KEYSTONE GUARD SERVICES, INC., Appellee. 3rd District.

Contracts -- Action for breach of contract for sale of business and foreclosure of mortgage on real property on which business is located -- Where concept of sale document did not include all essential elements of agreement, trial court erred in refusing to consider parol evidence of the actual terms of the sale -- Trial court erred in applying amount of overpayment on sale of stock in business as offset to amount due on mortgage where this offset was not requested -- Evidence -- Court should allow use of deposition transcripts for impeachment purposes
MARY ELLEN WRIGHT, Appellant, v. JOHN K. CZARIKI and KIMBERLY S. CZARIKI, Appellees. 2nd District.

Dissolution of marriage -- Alimony -- Ability to pay -- Final judgment of dissolution reversed because trial court failed to make necessary findings of fact to enable appellate review of the issue of husband's ability to pay
LARRY J. RUTAN, Appellant, v. VIRGINIA J. RUTAN, Appellee. 2nd District.

Dissolution of marriage -- Alimony -- Modification -- Error to include in order reducing former husband's alimony obligation a provision for alimony obligation to automatically revert to premodification amounts conditioned solely upon the parties' relative income levels returning to what they were at time of 2000 final judgment of dissolution and a subsequent 2009 order denying a prior modification petition
JOHN A. ANDERSON, Appellant, v. JOAN C. ANDERSON, Appellee. 2nd District.

Dissolution of marriage -- Child custody -- Relocation of children -- Error to enter temporary order granting husband permission to have parties' minor children relocate with him to foreign state where there was no competent, substantial evidence which would support a finding that relocation was in children's best interest
SANDRA LEE ALBANESE, Appellant, v. MAXWELL ALBANESE, Appellee. 5th District.

Dissolution of marriage -- Child support -- Modification -- Evidence -- Where only basis for modification pled by former husband was son's reaching majority and graduating from high school, general magistrate erred in awarding relief on basis of parties' changed circumstances, as this relief was not requested -- Magistrate erred in substituting her own experience for former wife's sworn testimony regarding former wife's income from working at a nail salon -- Magistrate erred by taking judicial notice of documents not introduced into evidence without giving reasonable notice to parties -- Trial court erred in striking former wife's amended exceptions to magistrate's report as untimely where original exceptions were timely filed -- Because magistrate's report was clearly erroneous and not supported by competent evidence, trial court erred in adopting the report
DEBRA GLAISTER, Appellant, v. RALPH GLAISTER, Appellee. 4th District.

Dissolution of marriage -- Equitable distribution -- Error to credit husband for full value of contributions toward upkeep of certain home during pendency of divorce, rather than for one-half of the monies expended -- Error to fail to credit wife with one-half of money she spent to maintain property during pendency of divorce -- Wife is entitled to half the 401(k) benefits forfeited to husband from accounts of three employees who were terminated from husband's medical practice prior to date dissolution petition was filed -- Error to fail to credit husband with half of the marital funds wife used during pendency of dissolution to pay her attorney's fees -- Child support -- Final judgment to include month, day, and year that reduction or elimination of child support will become effective -- Trial court erred in ordering parties to split cost of child's uncovered medical expenses 50/50, rather than requiring payment on pro rata basis -- Wife should not be required to pay any part of child's medical expenses that would be covered by insurance but for husband's unilateral decision not to submit expenses for payment by the insurance carrier
VALERIE K. FAIRCHILD, Appellant/Cross-Appellee, v. PATRICK G. FAIRCHILD, Appellee/Cross-Appellant. 5th District.

Dissolution of marriage -- Equitable distribution -- Military retirement benefits -- Trial court's Order for Division of Military Retirement Pay is reversed because, in allowing wife to receive payments based on pension benefits earned by husband after dissolution, it calculates wife's portion of husband's pension in a manner different from what parties orally agreed to and incorporates a coverture fraction contrary to Florida law
JEFFREY FRITZ, Appellant, v. TERRI FRITZ, Appellee. 2nd District.

Mortgage foreclosure -- Dismissal -- Failure to prosecute -- Record activity -- Motion to amend complaint was a sufficient filing to avoid dismissal for failure to prosecute
DEUTSCHE BANK NATIONAL TRUST CO., Appellant, v. MARK CHRISTIAN GOMBERT, AS CO-TRUSTEE OF THE CHRISTIAN W. GOMBERT FAMILY TRUST DATED JANUARY 23, 2001, GREGORY DEAN GOMBERT AS CO-TRUSTEE OF THE CHRISTIAN W. GOMBERT FAMILY TRUST DATED JANUARY 23, 2001, CHRISTY CHRISTINE GOMBERT a/k/a CHRISTY C. GOMBERT, RUSSELL W. GOMBERT, PAUL JASON GOMBERT, TAMMY D. GOMBERT AND ERIC STEPHEN GOMBERT, et al., Appellees. 1st District.

Mortgage foreclosure -- Error to enter final judgment of foreclosure while counterclaim remained pending
JACQUELINE KUSHNER and LARRY J. KUSHNER, Appellants, v. WYNDSONG ESTATES HOMEOWNERS ASSOCIATION, INC., Appellee. 4th District.

Mortgage foreclosure -- Trial court erred in granting summary judgment to bank because an issue of material fact existed as to when the bank took possession of the note -- Argument that the note followed the mortgage when the mortgage was assigned to bank is flawed because the mortgage follows assignment of the note
JOSEPHINE BRISTOL, Appellant, v. WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF THE FIRST FRANKLIN MORTGAGE LOAN TRUST 2006 FF15, Appellee. 4th District.

Torts -- Fraudulent misrepresentation -- Action by plaintiff who jointly purchased real property with defendant, alleging that defendant, who made mortgage payments for four years, ceased making mortgage payments after four years, and executed quitclaim deed to plaintiff, falsely represented his marital status to plaintiff -- Even if defendant did make a false statement regarding his marital status, it was not material to the written documents obligating plaintiff to pay the mortgage and conferring a property interest in the property in plaintiff -- Further, facts adduced at final hearing did not establish any financial injury to plaintiff resulting from her reliance on defendant's marital status -- Breach of contract action based on defendant's oral agreement to make mortgage payments would be barred by statute of frauds provisions barring lawsuits upon promises to pay another's debt and agreements not to be performed within one year, and plaintiff could not avoid statute of frauds by couching claim in terms of the tort of fraudulent misrepresentation -- Judgment for plaintiff reversed
MARC COHEN, Appellant, v. DONNA B. CORBITT, Appellee. 1st District.

Torts -- Legal malpractice -- Dismissal -- Error to dismiss complaint with prejudice on ground of plaintiff's failure to amend complaint within time granted by court where order did not specify that failure to file amended complaint within that time would result in dismissal with prejudice
DARYL L. MERL, Appellant, vs. JEFFREY S. WEINER, P.A., etc., et al., Appellees. 3rd District.


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1 comment:

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